R v Horncastle and others (on appeal from the Court of Appeal Criminal Division)

Facts

The appeals concerned several defendants whose convictions for serious offences of violence rested significantly or solely on witness statements of witnesses who did not give evidence at trial. In some the witness had died before trial, and in others the witness was too frightened to attend. The statements were admitted under the hearsay provisions of the Criminal Justice Act 2003.

History

The Court of Appeal had dismissed the appeals against conviction, holding that the admission of the statements was lawful and that the convictions were safe, and it declined to follow the Strasbourg Chamber decision in Al-Khawaja and Tahery v United Kingdom. The defendants appealed to the Supreme Court.

Issue

Whether the admission of hearsay evidence under the Criminal Justice Act 2003 in cases where the conviction rested solely or to a decisive degree on it violated the right to a fair trial under Article 6, and the extent to which a domestic court must follow a decision of the European Court of Human Rights.

Held

Appeals dismissed. The hearsay regime in the 2003 Act was compatible with Article 6 and contained safeguards, and the Supreme Court declined to apply the sole or decisive rule from the Strasbourg Chamber decision.

Ratio

• Section 2 of the Human Rights Act 1998 requires a court to take account of Strasbourg decisions and not to be bound by them, and in rare cases where a Strasbourg decision appears to give insufficient weight to some aspect of the domestic process, the court may decline to follow it, giving reasons, in the hope that Strasbourg will reconsider.
• The admission of hearsay evidence under the 2003 Act, subject to the statutory safeguards and the discretion to exclude it, does not violate Article 6, and a rule that a conviction may not rest solely or decisively on hearsay is not required by the Convention.

The judgments

Key reasoning

• The court reviewed the Strasbourg authorities and concluded that the sole or decisive rule had not been the result of a considered analysis of how the English system of hearsay admissibility worked and the safeguards within it.
• Under the statute hearsay is admissible only in defined circumstances such as the death or fear of the witness, with a judge control to exclude it if the court considers that it would not be fair to admit it, and the trial and appeal process further protect the defendant.
• The duty to take account of Strasbourg means giving the decisions of the Strasbourg court great weight, and the court should normally follow a clear and constant line of authority, but the decision of a Chamber that is not a settled line may be departed from where the court has good reason.

Where it fits in the module

In the Constitution course the case is used to explore the relationship between the Human Rights Act 1998 and the Strasbourg court, and the argument that the courts are not bound to follow Strasbourg. It raises the question of whether section 2 allows a domestic court to treat Strasbourg as a source of persuasive authority only and the place of parliamentary sovereignty in that relationship.

Criticisms

• The court departed from Strasbourg on the ground that the Chamber had misunderstood English law, but this puts the domestic court in the position of correcting the European court, which is hard to reconcile with the aim of the Act to bring rights home.
• The decision gave only limited weight to the risk of unfairness when the prosecution rests on a statement that has not been tested by cross examination, and it relies on safeguards which may not always work in practice.
• The dialogue model was criticised as unrealistic because a domestic court is not entitled to refuse to follow the Convention as interpreted by the European court, and the later Grand Chamber ruling shows the process gave a mixed result.